Progressive law in times of political deadlock?

Among the different representatives of civil society that we were able to meet during our journey, one encounter stood out. Talking about his initiative to improve living conditions and ultimately shut down the „Centro di identificazione ed espulsione“ (CIE) of Bari, local lawyer Luigi Paccione showed subtle confidence that what he called a „logic of incarceration“ might be repelled. He draws hope from the fact that unlike other NGOs in the field, the „Associazione Class Action Procedimentale“ choses to intervene not in the forum of institutionalized politics, but through strategic litigation. Indeed, a review of recent case-law of constitutional and European courts shows that the judiciary is becoming an important driving force in the field of asylum law – and is discovered as an ally by human rights NGOs. As Paccione explains in general terms, his initiative draws on the procedural tool of „class actions“ to explore new venues for direct and spontaneous democratic participation, realized through the dialogic structure of the trial. The single matter of appropriate living conditions for migrants awaiting deportation is re-contextualized as part of a movement to re-define the common good.

All across Europe, migrant detention has raised principled objections as it does not represent a judicial sanction but, de facto, leads to detention conditions that are hardly any different from criminal detention. In a case concerning Germany, the Court of Justice of the EU has recently re-emphasized the need to create „specialised“ detention facilities for third-country nationals under the „Return Directive“. At present, this „obligation to differentiate“ is not wholly respected in the German carceral practice. Similar problems exist in Italy, where Luigi Paccione furthermore denounces inhumane conditions at the CIE of Bari: small and overcrowded containers for an ever extended period of stay, insufficient sanitary capacities and bad moulding. NGOs have repeatedly criticized a lack of transparency and limited access to such facilities. Tellingly, no visit to a CIE could be arranged during our journey, while private contractors running the „Welcome centers“ (Centri di accoglienza per richiedenti asilo – CARA) were keen to show us around in great detail.

Some major elements of Luigi Paccione’s criticism has been retained by the District Court of Bari following a class action suit in 2013. In January 2014, the local authorities were given 90 days to renovate the facilities and assure a minimum of human rights standards. While the case does not create binding precedent and cannot be applied to other CIE beyond Bari, it might become a pilot case that impacts other District Courts in similar constellations.

Paccione sees legal opinions spread as easy as (if not easier than) political convictions. A human rights take on migrant detention can also widely afford to neglect questions for viable alternatives: “Human rights simply require the status quo to end – irrespective of alternative paths that might or might not suit everybody.”